The Bachelor as discrimination? Publicity stunt lawsuit undermines legitimate discrimination claims

This week, two African-American men filed what their attorney calls a "landmark civil rights case that will move social justice and economic equality forward." The class action lawsuit, Claybrooks v. American Broadcasting Companies, claims that The Bachelor franchise purposefully discrimination against people of color. You read that last sentence correctly. Apparently, casting some color on The Bachelor will cure all of society's discriminatory ills.

Does The Bachelor skew white? Absolutely. Are their other reality shows that skew black, or latino, or gay? You bet. Do any of them technically "discriminate" in their casting choices? Probably, because they are targeting a certain demographic for their audience. Just like The Bachelor has not cast many African-Americans, it also has not cast any septuagenarians. Why? Because their target audience would not watch, and the show would be taken off the air.

This is not discrimination. It's marketing. It's no different than McDonald's running an advertising campaign with an urban music bed and all all-Black cast.

Publicity stunts like this lawsuit undermine the real plight of African-Americans and other minorities, both in the workplace and society in general. If protected groups want people to take discrimination seriously, and treat it as a serious problem, they need to stop screaming discrimination for things like reality television casting decisions.

I’m syndicated! Announcing my launch on Workforce.com as The Practical Employer

For content, they say that five years is the magic number. For example, after five years, television shows are eligible for syndication. Apparently, the same holds true for employment law blogs, as mine will turn five in a few weeks.

This week, Workforce.com—one of the web’s most distinguished portals for all things human resources (and part of the Crain Communications family)—debuted me as one of its featured bloggers, under the title The Practical Employer.

I’m beyond thrilled, and honored, to join their exclusive club, alongside the likes of Kris Dunn, Ann Bares, and Fistful of Talent.

Thanks to Kris Dunn for introducing (and recommending) me to the Workforce people. Thanks also to the staff at Workforce.com, who’ve been great to work with while they got my micro-site up and running.

Never fear. The Ohio Employer’s Law Blog is not going anywhere. You now just have another way to read my content. Either here, or at Workforce.com, as The Practical Employer.

Don’t post those new NLRB notices—finally

On Monday, I reported that a South Carolina federal court had invalidated the NLRB’s attempt to force employers to post a statement of employees’ rights under the National Labor Relations Act. I cautioned that until you heard otherwise, employers should assume that April 30 was still a go for the new posting.

News moves fast in the world of labor and employment law. Yesterday, the D.C. Circuit [order, pdf] enjoined the whole shebang until the issues can work their way through the appellate courts:

We note that the Board postponed operation of the rule during the pendency of the district court proceedings in order to give the district court an opportunity to consider the legal merits before the rule took effect. That postponement is in some tension with the Board’s current argument that the rule should take effect during the pendency of this court’s proceedings before this court has an opportunity to similarly consider the legal merits.…The uncertainty about enforcement counsels further in favor of temporarily preserving the status quo while this court resolves all of the issues on the merits.

Ever gracious in defeat, NLRB Chairman Mark Gaston Pearce said, "We continue to believe that requiring employers to post this notice is well within the Board’s authority, and that it provides a genuine service to employees who may not otherwise know their rights under our law."

The April 30 deadline for posting the NLRB’s employee rights notice is officially dead. It could take into next year before these issues work their way through the circuit courts, not to mention a likely appeal to the Supreme Court. By then, the NLRB could be tinted red and this whole issue could be moot. In the meantime, you’re break-room is free and clear of the NLRB’s latest mission statement.

More social media woes: employee fired for “liking” gay Facebook page

According to MSNBC, an employee has sued the Library of Congress for firing him after his manager discovered that he had “liked” the “Two Dads” page on Facebook. The employee, Peter TerVeer, claims that after his manager discovered he was gay, his performance reviews turned negative. TerVeer also claims that the manager started making derogatory statements about his sexual orientation and sending religiously motivated emails.

Let me offer three takeaways for businesses from this story:

1. Title VII, like Ohio’s anti-discrimination statute, does not protect sexual orientation. Nevertheless, courts have been known to stretch the definition of gender to include sexual orientation in certain cases. Even if TerVeer doesn’t have a sex discrimination claim, the religious overtones of the manager’s emails could provide a claim based on religion.

2. Much has been made lately about employers snooping on employees’ social media activities. According to nbclosangeles.com, however, the manager only learned about TerVeer’s Facebook activities when the manager’s daughter noticed the “like” and told her dad. This fact underscores what Lafe Solomon (the NLRB’s acting general counsel) told me when we appeared on NPR together last fall—that every social media charge filed with the NLRB started with a co-worker printing out the social media post and giving the hard copy to a manager. In other words, management as much of a hobby out of snooping on its employees as some would have you believe.

3. Despite this story’s foreboding tone, employers should not think that all employees’ off-work activities are off-limits. Nevertheless, this story underscores that employers need to tread very carefully when examining what their employees do on their own time.

Don’t post those new NLRB notices just yet (maybe)

As of this moment, April 30 is still your drop-dead date to post the NLRB’s new employee rights notice. Last Friday, however, a South Carolina federal court put that date, and the NLRB’s entire poster itself, in grave jeopardy. In Chamber of Commerce of the United States v. NLRB [pdf], the United States District Court for the District of South Carolina invalidated the NLRB’s attempt to force employers to post a statement of employees’ rights under the National Labor Relations Act.

According to the Court, the NLRB’s powers are reactive, not proactive. Thus, its Congressionally-mandated duty is to prevent and resolve unfair labor practice charges and to conduct representation elections—both of which must be initiated by an outside party’s filing. The NLRB’s proposed posting of employee rights, however, is proactive—it requires employers to do something without any filing by an outside party. As such, the NLRB exceeded its statutory authority.

The South Carolina court is not the first to rule on this issue. Last month, a different federal court reached the opposite conclusion and upheld the NLRB’s right to require most of the posting. The NLRB is reviewing its options as to whether it will postpone the posting requirement nationwide in light of the latest ruling. Likely, it will take some time for these issues to weave their way through the appellate courts for an ultimate resolution.

We now have two conflicting district court opinions. As an employer, what are you supposed to do? For now, and until you hear otherwise, assume that April 30 is still a go for the new posting. In the meantime, this case—which is the strongest rebuke to date of the power-grab by this administration’s agencies—is a huge victory for employers.

[Hat tip: Labor Relations Today]

WIRTW #221 (the “what’s in a name” edition)

If you don’t follow me on Twitter (what are you waiting for?), or if you missed the news as it flew by in your stream, my family is adding a dog in June. We’re super excited, but are stuck on what to name her. Do you want to help? I’m running a poll. We have it narrowed down to three choices, but are open to suggestions.  She’ll be a vizsla, if that helps. Take a few seconds to vote on one of our three choices, or add your own suggestion.

Here’s the rest of what I read this week:

Discrimination

• When is the Best Time to Try and Settle Employment Litigation? — from Russell Cawyer’s Texas Employment Law Update
• Men Must be Allowed the Same Child Care Leave as Women — from Employer Defense Law Blog
• The Wrong Way to Help the Disabled — from Walter Olson’s Overlawyered
• Bipolar Disorder Disability Discrimination Lawsuit — from The Proactive Employer Blog
• Workplace pregnancy discrimination cases on the rise — from The Washington Post
• Anatomy of an EEOC Charge — from Casey Sipe’s The Employer’s Lawyer
• Is Weight Discrimination OK? — from HR Examiner with John Sumser
• Obama Won’t Order Ban on Gay Bias by Employers — from the New York Times
• Women, Money, and Bias: “The Economy Is Classist, Then Racist, Then Sexist” — from The Atlantic

Social Media & Workplace Technology

• Is Violation of Employer’s Computer Use Policy a Federal Crime? — from Phil Miles’s Lawffice Space
• Is Your Smartphone Making You Less Productive? — from Harvard Business Review
• Just One More Game ... Angry Birds, Farmville and Other Hyperaddictive ‘Stupid Games’ — from the New York Times Magazine
• Forget Facebook or Emails, Bosses Booting Employees Over Bandwidth — from FOX8.com
• Bosses’ big fear? That employees will film them — from CNET News
• Employers Aren’t Likely to Ask for Your Facebook Password — from US News and World Report’s On Careers Blog
• What Advice Should Lawyers Give Clients Who Want to Ask Prospective Employees for Their Facebook Passwords? — from Mike Maslanka at the Texas Lawyer
• What to Do When A Potential Employer Asks for Your Facebook Password — from Mashable
• The Spotlight is On Practice of Employers Requesting Access to the Social Media Accounts of Employees and Job Applicants — from Fitzpatrick on Employment Law
• Employer not allowed to search for porn on employee’s home computer — from Internet Cases

HR & Employee Relations

• Backstage Peek: Pixar Animation Studios’ “Cereal Bar” — from the disney food blog
• Dear Evil Skippy: Should I Have Been Warned for Using A T.V. Show’s Name at Work? — from Evil Skippy at Work
• Hire Slow, Fire Fast: Revisted — from Mike Haberman’s Omega HR Solutions
• Thanks for the Criticism! — from by Jim Brennan at Compensation Cafe
• Got Trade Secrets? — from The Employer’s Lawyer
• The Employee Handbook is Not Your Handbook — from Strategic HR Lawyer
• Stop being the office slob — from Suzanne Lucas at CBS Money Watch
• L.A. Firefighter Arrested For Moonlighting As MMA Brawler While Allegedly On Workman’s Comp — from Deadspin
• Physics in HR – The Petrino Principle — from The HR Introvert

Wage & Hour

• WINNER TAKES ALL: Supreme Court to Determine if Pharma Reps Should Be Classified as “Exempt”… — from The HR Capitalist, Kris Dunn
• Rebuild America Act Would Hike Tip Credit, Minimum Wage, Paid Time Off — from TLNT
• Volunteers May Be Entitled to Pay Under the Fair Labor Standards Act — from Randy Enochs’s Wisconsin Employment & Labor Law Blog
• Employee Wage Misclassification Should Be Taken Seriously — from Rush Nigut’s Rush on Business

  Labor Relations

• The Pros and Cons of Joining a Labor Union — from Fox News
• Three Weeks Until NLRB Posting Rule Takes Effect — from Dan Schwartz’s Connecticut Employment Law Blog
• Do Employees Read Break Room Signage Anyway? — from Jessica Miller-Merrell’s Blogging4Jobs
• Union says right-to-work law violates free speech — from Bloomberg Businessweek

Standing up for your employees

Last night, the Philadelphia Flyers rallied from 3 goals down to take game 1 of their first round series from their cross-state rivals, the Pittsburgh Penguins. Right now, you’re all thinking to yourselves, what can this possibly have to do with employment law or employee relations?

Four months ago, Dallas Stars’ center Steve Ott delivered a hit to Flyers’ star Claude Giroux, who had just returned to the lineup from a concussion. At the end of the period, Flyers’ coach Peter Laviolette chased down Ott in the Stars’ tunnel and confronted him about what he perceived as a cheap shot. According to Philly.com, Giroux appreciated his coach’s action: “It’s good to see we have each other’s back.”

Two weeks ago, Laviolette again stood up for his players, following a fight-filled conclusion to a game against the Penguins. The fights were precipitated by what Laviolette called a “gutless” move by the Pens to put its enforcers on the ice at end of a 6-3 blowout. As all 10 players on the ice fought, Laviolette stood on the boards yelling at Pens’ assistant coach Tony Granato. After the game, Laviolette defended his tirade (via CSNPhilly.com): “Those guys hadn’t played in 12 minutes; it was a gutless move by their coach.” Again, Giroux stood up for his coach (via CSNPhilly.com): “He’s got our back…. He’s an intense coach who loves his players.”

Which brings me back to last night. The Flyers fell into a quick 0-3 hole. They needed to rally. And, they did. Don’t think for a minute that whatever motivation Laviolette used to jump-start his team had added impact because his players know that he stands up for them. He has their backs, and they responded with 4 unanswered goals and a 1-0 series lead.

Your organization is not a hockey team, but there is a lesson to learn from Peter Laviolette. If you have your employees’ backs, they will reciprocate. You never know when you’ll need your employees to rally for you (overtime, sales quotas, deadlines, etc.). Make it easier for them to go the extra mile by standing up for them when they need it. Reward good performance. Recognize star performers. Take complaints seriously. Have an open-door for your employees. Your employees will pay you back in spades.